The following terms and conditions of sale apply from 1 August 2016 and supersede all previous arrangements. Any transactions with Cengage Learning Australia Pty Limited ABN 14 058 280 149 (hereinafter referred to as ' Cengage ' unless otherwise specified) on or after 1 August 2016 are subject to these terms and conditions.
'Australian Consumer Law' means the legislation set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any regulations made under the Competition and Consumer Act 2010 (Cth).
'Category A customer' means sales of $50,000 or more per annum as approved by Cengage 's HED National Sales Manager.
'Category B customer' means sales of less than $50,000 per annum.
'Goods' shall mean all publications, electronic or print, including books and notes related thereto, cassettes, videos, software, posters, bookstands, and any other goods supplied by Cengage to the customer.
'GST' has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any regulations made under A New Tax System (Goods and Services Tax) Act 1999 (Cth);
'Insolvency Event' means the bankruptcy of the customer or the appointment of a trustee in bankruptcy, controlling trustee, administrator or receiver and manager over the customer, or the customer entering into liquidation
'PPSA' means the Personal Property Securities Act 2009 (Cth) and any regulations made under the Personal Property Securities Act 2009 (Cth)
'Services' shall mean all services provided in connection with the supply of Goods, including postage, processing and handling, and cancellation.
All supplies of Goods and Services will be invoiced by Cengage to the customer at the prices corresponding to those Goods and Services at the time of dispatch. Prices are subject to change without notice.
All prices are inclusive of GST. GST charges on all Goods and Services are at the applicable legislated rates.
4. Payment Terms
The 'payment due' date will be printed on the invoices issued by Cengage to the customer. Payment remittances must clearly set out all invoices that are being paid. Where this information is not supplied, at Cengage 's option, the customer 's payment may be allocated to the oldest outstanding item. Any deductions made for authorised claims, where the credit notes have not yet been raised, must be accompanied by full details of the invoice numbers and 'Return Authorisation' numbers.
5. Statement of Account
Accounts are conducted on a monthly basis. Statements are forwarded after the end of each month.
6. Overdue Accounts
Cengage reserves the right to withhold supply to any customer who trades outside the agreed trading terms. Late payment of accounts may lead to a reduction in discount for future supplies and may affect the customer 's credit facility. Persistent late payment will result in the customer 's account being closed and backorders cancelled.
Cengage reserves the right at its sole discretion not to supply certain customers, or customers in certain countries, or to apply any limitations of quantity or value deemed appropriate.
8. Recorded Order
All titles not in stock will automatically be recorded as an order for Goods to be supplied by Cengage to the customer at a future date, unless the customer otherwise instructs Cengage.
9. New Editions
Cengage will roll or substitute all orders for Goods to a new edition unless the customer otherwise instructs Cengage.
10. Postage and Handling Fees
Cengage reserves the right to charge postage and levy a processing and handling surcharge on all orders. There is an AUD/NZD11.00 (including GST) surcharge on all primary school and bookseller orders below a net value of AUD/NZD100.00.
11. Cancellation Fee
Cengage reserves the right to charge a processing and handling fee for cancelled orders of Goods. Any ordered title which is received and processed by Cengage and is subsequently cancelled will be subject to a processing and handling charge of 10% of the net invoice total.
Customers wanting to cancel subscriptions will need to advise Cengage 's Customer Service department within one month of the subscription period having started. Cancellation requests must be in writing on the letterhead of the subscribing customer.
Cengage 's subscription renewal period is one (1) month prior to the end of the subscription term. If a subscription has been confirmed as renewed but payment has not been received by the end of the first month of the new subscription term, the subscription will be cancelled.
Cengage reserves the right to ship Goods via the carrier of its choice in all cases. Cengage 's obligation to deliver Goods shall be discharged on arrival of the Goods at the customer 's designated delivery address, or at the address appearing on the customer 's order.
For mutual benefit, Cengage is anxious to ensure that all customer claims are resolved promptly and efficiently. All deliveries of Goods should be checked on receipt, and any discrepancies or damage must be reported to both the carrier and Cengage for the claim to be considered. No claim can be made after the expiration of seven (7) days from date of delivery of Goods. Goods can only be returned with an official 'Return Authorisation', regardless of which party is obliged to pay the cost of the return, and invoice number(s) must be quoted in all instances.
14. Return Rights as Identified by Title Description on Invoice
(a) Any application to return Goods must be made in writing and directed to the Cengage Customer Service department at its Melbourne office, (Level 7, 80 Dorcas Street, South Melbourne, Victoria 3205; email: email@example.com, phone: 1 300 790 853; fax 1 300 790 852), and must beapproved by Cengage prior to the customer 's physical return of Goods.
(b) All physical returns of Goods must include a copy of the 'Return Authorisation' provided by Cengage, and the carton label, which must be clearly adhered to the outside of each of the cartons/packages. No return will be accepted by Cengage unless this condition is satisfied.
(c) Returned Goods must be satisfactorily packed and received by Cengage 's warehouse in saleable condition, or the Goods will not be accepted.
(d) Invoice numbers must be quoted on all return requests.
(e) Return freight and/or postage is at the customer 's expense.
(f) A 'Return Authorisation' provided by Cengage is valid for 30 days from the date it is raised. Goods must be returned to Cengage 's warehouse within this time, or the ' Return Authorisation ' will be void and the Goods will not be accepted.
(g) Goods returned must be the current edition and in print. Approval for the return of superseded editions may be granted up to 120 days after the announcement of the new edition.
Goods are offered on a firm sale, no return basis, except 'On Approval/Inspection Copy' sales. The customer will be issued with a 'Return Authorisation' form and package label for 'On Approval/Inspection Copy' returns. General conditions (a) to (g) apply.
ELT (English Language Teaching) titles
Goods are offered on a firm sale, no return basis.
Higher Education titles
Goods are offered on a sale or return basis subject to the following conditions:
Category A Customers - returns will be accepted up to 18 months from the date of invoice up to a maximum of 15% (rolling annual average) of purchases for the previous 18 months, subject to approval. General conditions (a) to (g) apply.
Category B Customers - returns will be accepted up to 12 months from the date of invoice up to a maximum of 10% (rolling annual average) of purchases for the previous 12 months, subject to approval. General conditions (a) to (g) apply.
Indent titles are sold on a firm sale, no return basis.
Library Reference Titles
Goods are offered on a firm sale, no return basis.
Standing Orders & Subscriptions
The customer, by placing a standing order or renewing a subscription, authorises Cengage to supply regular updates and accepts liability for payment of accounts issued by Cengage for such updates when they occur. Cengage reserves the right to electronically repossess the licensed content of the standing order or subscription and to deny the subscribing customer further access to the licensed content in the event payment is not received by the due date.
15. Reservation of Title
(a) The title to Goods subject to these terms and conditions of sale or any other Goods sold by Cengage to the customer shall not pass to the customer and shall remain the sole and absolute property of Cengage as legal and beneficial owner until all moneys due by the customer to Cengage in respect of the purchase of the Goods and Services, and all other monies owing by the customer to Cengage have been paid in full by the customer. Payment shall not be deemed to be made by the customer until Cengage holds cleared funds.
(b) If the customer re-sells the Goods, then:
(i) as between the customer and its purchaser, the customer shall be a principal and not the agent of Cengage;
(ii) the customer shall account to Cengage for that part of the proceeds of sale equal to the price payable by the customer to Cengage in respect of such Goods and Services;
(iii) until the customer pays Cengage the price payable for the Goods and Services, the proceeds of resale shall become the property of Cengage and shall be maintained by the customer in trust for Cengage in a separate account.
(c) If any payment is overdue in whole or in part, or the customer experiences an Insolvency Event , Cengage may (without prejudice to any of its other rights) recover and/or resell any Goods it has supplied to the customer, and may enter upon the customer 's premises (whether freehold, leasehold or held under any other tenure) by its servants or agents in order to take possession of and remove any such Goods. Cengage shall not be liable for any damage, injury or loss, however caused, resulting from the said recovery and/or sale of Goods.
(d) The customer acknowledges that:
(i) these terms and conditions of sale constitute a 'security agreement' for the purposes of the PPSA;
(ii) under this security agreement, Cengage is the 'secured party', the customer is the 'grantor' and the Goods supplied by Cengage to the customer pursuant to these terms and conditions of sale are ' collateral ', including Goods supplied to the customer both before and after this security agreement is made;
(iii) the customer grants a 'purchase money security interest' to Cengage in the Goods as collateral pursuant to this security agreement for the purposes of the PPSA;
(iv) Cengage has or will register its purchase money security interest and/or security interest in the Goods and proceeds of sale of the Goods as collateral in accordance with the PPSA;
(v) at Cengage 's request, the customer must, at its cost, do anything considered by Cengage in its absolute discretion to be necessary for the purposes of ensuring that Cengage 's purchase money security interest and/or security interest in the Goods and proceeds are able to be registered on the Personal Property Securities Register and are enforceable, perfected and effective to give Cengage priority for the purchase money security interest and/or security interest in an Insolvency Event of the customer or otherwise;
(vi) Cengage is not required to give the customer any notice under the PPSA (including a verification statement) unless the notice is required by the PPSA and cannot be excluded.
16. Consumer Guarantees and Limitation of Liability
(a) Subject to the express terms contained herein , no warranty, condition, description or representation on the part of Cengage is given or implied by these terms and conditions of sale, nor has been given nor is to be implied from anything said or written in the prior negotiations between Cengage and the customer or their respective representatives; and
(b) Except where prohibited by law, any statutory or other warranty, condition, description or representation expressed or implied as to the state, quality or fitness of the Goods and Services subject to these terms and conditions of sale is hereby expressly excluded;
(c) Where Goods sold by Cengage are more than $40,000 and not of a kind ordinarily acquired for personal, domestic or household use or consumption, the liability of Cengage for a breach of guarantee under the Australian Consumer Law (other than a guarantee under sections 51, 52, and 53) shall be limited to the repair of the Goods, provided that such Goods are returned to the place nominated by Cengage, or at Cengage's option the replacement of these Goods or the supply of equivalent Goods;
(d) Subject to the express terms contained in these terms and conditions of sale, there shall be no liability on the part of Cengage in respect of any claim whatsoever that may arise either from the customer, or any person through the customer, arising from any defect in the Goods and/or Services sold or arising from non-supply, incorrect supply or delay in the dispatch or the delivery of Goods and/or Services;
(e) Notwithstanding anything contained herein, Cengage shall continue to be subject to any guarantee, warranty or condition provided by the Australian Consumer Law or any other Commonwealth or State legislation, if and to the extent that the said legislation is applicable to the contract evidenced by these terms and conditions of sale and prevents the exclusion, restriction or modification of such guarantee, warranty or condition,
17. Force Majeure
All quotations, offers and contracts for supplies of Goods and Services are subject to the express condition that Cengage will not in any way be responsible for loss, damage or delays arising from strikes, lockouts, cessation of labour, fire, flood, transport delays, shortened hours of labour, accidents of any kind, perils of the sea or rivers, war or the like, act of God, non-delivery of material or parts by other manufacturers, or any other cause or contingency whatsoever beyond the control of Cengage, whether 'ejusdem generis' with the preceding causes or not.
The terms and conditions of this sale shall be subject to the laws of the State of Victoria, Australia and the courts of Victoria.
All conversations, representations and statements not embodied in a quotation or invoice or not confirmed in writing by Cengage are expressly excluded and shall not be deemed to be part of any quotation, invoice, order or contract between Cengage and the customer, or to have induced the order by the customer, or to have any legal effect whatsoever.
20. Variations of Terms & Conditions of Sale
Cengage reserves the right to vary these terms and conditions of sale without notice at any time. Amendments to these terms and conditions of sale will apply to any order commenced on or after the date of notification of the amendments by Cengage to the customer. Cengage may notify the customer of the amendments to these terms and conditions of sale by publishing the amended terms and conditions of sale on its website, referring to these terms and conditions of sale on its invoices, or by any other method. The customer 's acceptance of any amendments to these terms and conditions of sale will be evidenced by the customer providing an order to Cengage after Cengage 's notification of the amendments to the terms and conditions of sale, without the need for the customer to provide any other formal notification of its acceptance to Cengage.
The terms and conditions of sale are subject to the provision of any relevant legislation, including but not limited to the Australian Consumer Law and the PPSA.